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Definitions and Distinctions

Gaining Consent and dealing with uncertainty, reluctance and refusal of medical or surgical treatment in children and young people needs to be done with care and sensitivity. With increasing maturity and understanding children and young people should be involved in decision making as much as possible, allowing as much time as possible for reflection by both the patient and (where relevant) parent carers, and dependent on the urgency of the situation. Professionals should allow time for this important duty of care and be prepared to answer questions, making clear that the best interests of the patient are their first responsibility.

Capacity vs competence

The terms capacity and competence are often used interchangeably but are not actually the same. The bottom line is that in children under 16 years of age, people tend to talk about assessment and possession of competence whereas in those over 16 people tend to talk about capacity.

A more formal distinction is that legal capacity refers to the possession of a legal power and the right to exercise it whereas competence refers to the ability to perform a particular task. Someone over 16 has the legal right to make decisions about their own healthcare (i.e. has capacity) unless they are not properly able to make those decisions (i.e. they lack competence). When discussing adults, these two concepts are combined and we simply talk about people having or not having capacity. As an example of this, The Mental Capacity Act 2005, which applies only to those over 16, does not contain the word ‘competence’, even though the tests for ‘capacity’ are actually tests of the individual’s decision-making ability (i.e. competence).
In those under 16, having the intellectual and emotional maturity to make a decision about treatment (i.e. being competent) gives them the legal right to make that decision. In other words, it confers legal capacity although it is never referred to as such – the child is simply referred to as being competent. The two terms are therefore separate concepts but nevertheless intrinsically linked in this context (although not in all contexts – for example, 15 year olds are never granted the legal capacity to marry or consent to sexual intercourse regardless of their competence).

The ‘rebuttable presumption of capacity’

This is the legal phrase that simply describes the responsibility to presume that anyone over 16 has capacity unless it can be shown that they do not. The tests you should use to show that someone over 16 does not have capacity are detailed in the Adults section of the website.

Children vs young people

Everyone under 18 is a child according to the law. In much of the literature ‘children’ tends to be used for those under 16 and ‘young people’ for 16 and 17-year-olds but this has no legal basis and is just a convention.

Parental responsibility

Parental responsibility (PR) refers to a collection of responsibilities that adults (usually but not exclusively parents) have with respect to children in their care and the rights that are accorded to them in order to allow them to discharge these responsibilities. Those with PR have the right to make decisions about medical treatment, provided they are acting in the child’s best interests. The paediatric consent section of the website contains more information about whether the child or the adult with PR should be making decisions about healthcare. More information about parental responsibility can be found in the British Medical Association's excellent leaflet here.